About Unmarried Father's Rights in California

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For centuries, a father's role in his child's life has taken second place to his role as a bread winner. In divorce rulings, a mother was often given the job of raising the kids while all the justice system demanded of dad was that he come up with child support.

But in modern times, social scientists are recognizing how important it is for a child's development to have an involved father. The laws in many states, including California, are starting to give fathers equal breaks when it comes to child custody/visitation or parenting time, at least married fathers. Unmarried fathers' rights in California are also on the rise, unlike many areas of the country. In fact, in most cases married fathers and unmarried fathers have the exact same parenting rights that mothers have in California.

Unmarried Parents

The divorce of a married couple with kids tests the character of both spouses as well as the laws of the state they live in. Until divorce occurs, the parents enjoy equal access and parenting rights, spending daily time with their children and having a say in decisions like school, church and place of residence. When the marriage breaks apart, good parents recognize the importance to their children of retaining a strong connection with each parent. But it is all too easy to see the other parent as the bad guy, and it is similarly easy for a state to enact laws assigning mothers and fathers traditional roles rather than shared parenting.

This is even more true for unmarried parents. In some European nations, the norm is for parents not to marry. However, in the United States, society has attached a stigma to the notion of having children out of wedlock. And if the unwed parents are not a couple at the time the baby is born, parenting issues are complicated by the need to figure out paternity issues first. To provide some kind of a basis for moving the custody procedure forward, some states enacted laws giving an unwed mother 100 percent of the parenting rights until paternity is established and the father has won parenting rights in court. This can happen even if the father's name is on the birth certificate. California's system, judged against these states, is much more balanced and equitable.

California Family Code Section 7610

The core statutes defining the rights of an unmarried father in California are California Family Law Code 7610 and following provisions. These statutes describe different ways that someone can be found to be a parent under the law.

In California, a woman is presumed to be the biological parent of a child if she gives birth. The man she is married to when she gives birth is presumed to be the father. If that couple goes their separate ways, there is no need to establish parentage.

The situation is different for unwed couples, and no presumption applies to the father since the existence of the relationship is a he-said/she-said matter rather than a legal status. But in California, a father can establish parentage under section 7611 if both parents sign a Declaration of Paternity form stating that he is a biological parent. This Declaration serves as a legal determination that he is the child's biological father to the same extent that a court ruling would. It also means that his name will appear on the child's birth certificate.

If either of the couple signing the Declaration of Paternity change their mind, they have to act fast. You can cancel or rescind a Declaration by completing a Declaration of Paternity Rescission Form. But this rescission form must be filed with the California Department of Child Support Services within 60 days from the date you signed the Declaration of Paternity. If you were a minor when you signed the Declaration of Paternity, you can file the rescission form within 60 days of your 18th birthday. Otherwise, you lose all rights to rescind the Declaration.

Rights and Duties of Presumed Father

By signing (and not rescinding) a Declaration of Paternity, an unwed couple gives up their rights to go to court to contest the issue of paternity. Once an unmarried father has been recognized as a parent under California Family Code section 7610-7611, he has and must assume the rights and duties of being a parent.

That means that the father can seek custody or visitation rights, also known as parenting time, even if he is no longer in a couple relationship with the mother of the child. He will be awarded time with the child without getting genetic testing. Likewise, a Declaration of Paternity means that he must help to support the child financially.

Establishing Paternity in Court

Unfortunately, things do not always work that easily. Not all unmarried couples who conceive a child want to be with each other. Some have never had the kind of relationship with each other that would encourage them to work together on parenting issues. If the couple was never really "together," or split up before the baby was born, the mother might not want the biological father listed on the birth certificate, or she may not even be sure who is the biological father. She may refuse to sign the Declaration of Paternity.

That's where a court case determining paternity comes in. Even if the mother doesn't want the child's father to play a role in parenting, she may want child support from him. In order to get a child support order directing the father to pay, she must ask a court to determine paternity. If she doesn't intend to ask him for child support but wants state assistance, she will have to turn over her rights to bring the paternity action to the state. California will sue to determine paternity and try to collect from the baby's father the money the state pays to care for it.

Likewise, a man who believes himself to be a child's father can ask a court to determine paternity. In fact, this is the only way he can become eligible for parenting rights if the mother won't cooperate by signing the Declaration of Paternity. Essentially, in a paternity action, the court orders DNA testing which proves or disproves that the man is the biological father. If he is found to be the father, he is entitled to seek parenting rights, including parenting time with the child. He is also obligated to pay child support.

Child Custody Laws in California for Fathers

If an unmarried father is presumed or proved to be the child's biological father, he can ask for parenting rights. These rights are also called custody and visitation. But there are no specific child custody laws in California for fathers not married to the child's mother. What kind of custody is an unmarried father likely to get?

In the state of California, custody laws favor co-parenting. Essentially, both parents have equal rights to custody and parenting time, and joint custody is the norm. Joint custody doesn't necessarily mean that time is split exactly 50/50 between parents, but rather that time is split fairly between parents, depending on the schedules and circumstances of each.

It often happens that a parent is hostile to the other parent's involvement – but that can backfire in California. The courts often note that a parent who is unwilling to communicate with the other parent and cooperate in sharing custody may not be fit to have custody at all.

California law mandates that custody orders give children "frequent and continuing contact" with both parents. The "frequent and continuing" is not defined in the codes, so a lot is left to the discretion of the court. But it does mandate that the two parents share in the rights and responsibilities of raising the child. The sole exception is when continuing contact is deemed inconsistent with the child’s best interest.

Physical and Legal Custody

There are two types of custody when it comes to kids. Physical custody is a matter of location. It means which parent "gets"the child when. Legal custody determines which parent makes the important decisions regarding the child's residence, health, education, religion and activities.

If unwed parents have joint physical custody, each has equal time with the child It is typically the same as a 50-50 parenting time arrangement, although it rarely works out so evenly in joint physical custody in California. The norm may be more like 40-60 or even 35-65. The idea is for each parent to get significant time with the child. As long as that happens, joint physical custody is appropriate.

Joint legal custody gives the parents equal say in the decision making about child. Neither can make important decisions without consulting the other. This is why cooperating and communicating are key. Since neither parent can make important decisions for the child without the other's consent, nothing can happen without open communication.

California law explicitly favors joint legal custody for parents, whether married and divorced or unmarried. That means that the court will be inclined to give both of you decision-making rights. Your rights as a father include getting information about your child's health and her school progress, and having a say in all critical decisions, including:

  • decisions that relate to your child's health, such as which doctor to use, what hospitals and what medication and treatment to okay. 
  • decisions having to do with any religion your child should practice, what church she should attend and what religious classes she should take, if any
  • decisions about whether your child should go to a private or public school
  • decisions about any travel your child does with school or outside of school
  • decisions about where the child will live
  • decisions about what sports and leisure activities your child should participate in

Child's Best Interests

The pivotal factor at the heart of all family law decisions in California is the "best interests of the child" standard. It is the single most important consideration in every case. What does the "child's best interest standard" mean in California custody law? It is certainly a broad standard allowing the court a lot of discretion, but this is its intention. It grants the judge a lot of latitude in resolving issues that are never black and white. That means that the court can tailor a custody and visitation parenting plan to fit the needs of the child. Any parent arguing for custody should keep it in mind.

That standard is also why custody decisions are rarely reversed on appeal. The question of the child’s best interest involves weighing many facts and factors. When the court of appeals reviews a family court decision on custody, it is unusual for the weighing process to be found so wanting that the judge can be said to have abused her discretion.

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About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.